Nose v. Attorney General of U.S.

• Decision Date: 11 June 1993
• Docket Number: No. 92-2444,92-2444
• Citation: 993 F.2d 75
• Parties: Ako NOSE, Plaintiff-Appellant, v. ATTORNEY GENERAL OF the UNITED STATES, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 75

993 F.2d 75

Ako NOSE, Plaintiff-Appellant, v. ATTORNEY GENERAL OF the UNITED STATES, et al., Defendants-Appellees.

No. 92-2444.

United States Court of Appeals Fifth Circuit.

June 11, 1993.

Rehearing and Rehearing En Banc

Denied July 12, 1993.

Harry Gee, Jr., Houston, TX, for plaintiff-appellant.

Carl H. McIntyre, Jr., David J. Kline, Office of Immigration Litigation Civil Div., U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Plaintiff Ako Nose, an illegal alien, filed a complaint against the Attorney General of the United States and assorted other entities ("Government"), seeking that the district court declare unlawful and enjoin the Government's enforcement of the Visa Waiver Pilot Program statute ("VWPP"), see 8 U.S.C.A. § 1187 (West Supp.1993), and its corresponding regulations. See 8 C.F.R. § 217 (1992). The district court granted summary judgment for the Government. Finding no error, we affirm.

I

Nose, a native and citizen of Japan, entered the United States on February 26, 1976, as a nonimmigrant student. Nose initially enrolled in English courses at the English Language Institute at the University of Michigan, Ann Arbor. Nose's plan apparently was to become proficient in English so that she could pass the state English proficiency examination and the state nursing board exam in Ohio, and then apply for a registered nursing position at the Cleveland Clinic. However, after studying English for more than two years and passing the state English proficiency exam, she was unable to pass the nursing exam. She therefore enrolled in the nursing program at Kalamazoo Valley Community College to become a registered nurse by obtaining a nursing degree. After three years at Kalamazoo College, Nose received her nursing degree. Nose subsequently accepted a registered nursing position at the Cleveland Clinic.

In March 1983, the Immigration and Naturalization Service ("INS") approved Nose's petition to change her status to that of a temporary worker, and extended her authorized stay until March 1984. In February 1984, Nose filed an application for an extension of her temporary worker status. Both Nose's application for extension and request for reconsideration were denied. Thereafter, the district director of the INS informed Nose that she had overstayed her voluntary departure date of May 4, 1984. For the next six years, Nose continued to work in the United States.

In May 1990, Nose traveled to Japan to marry her husband, Dr. Yukihiko Nose, who is a lawful, permanent resident of the United States. A month later, Nose was readmitted to the United States as an alien visitor under the VWPP. ¹ The VWPP permits alien visitors to enter the United States from designated countries for a period not exceeding 90 days without obtaining a nonimmigrant visa. See 8 U.S.C.A. § 1187 (West Supp.1993). An alien's admission into the United States under the VWPP is dependent upon, inter alia, the alien's waiver of any right to contest "any action for deportation." ² See id. Cognizant of the VWPP's 90-day limit, Nose reapplied for admission into the United States on five subsequent occasions. She last entered the country under the VWPP in January 1991. ³

On April 23, 1991, Nose's authorized stay pursuant to the VWPP expired. That same day, Nose filed the underlying complaint seeking declaratory and injunctive relief from the district court. In her complaint, Nose alleged: (1) that the application of the VWPP (and its corresponding regulations), ⁴ to deport her without the benefit of a hearing, would violate her due process rights under the Fifth Amendment; (2) that she did not knowingly and voluntarily waive her right to a deportation hearing under the VWPP; and (3) that the required waiver of rights under the VWPP did not include a waiver of her right to apply for non-asylum forms of relief from deportation. Finding that the application of the VWPP did not deprive Nose of her due process rights, and that Nose knowingly and voluntarily waived any right to contest any deportation action under the VWPP, the district court granted summary judgment for the Government.

Nose appeals, contending that the district court erred in concluding: (a) that she knowingly waived her right to a deportation hearing; and (b) that the required waiver of rights under the VWPP included a waiver of the right to apply for non-asylum forms of relief from deportation. ⁵

II

We review the district court's grant of a summary judgment motion de novo. Davis v. Illinois Cent. R.R., 921 F.2d 616, 617-18 (5th Cir.1991). Summary judgment is appropriate if the record discloses "that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). While we must "review the facts drawing all inferences most favorable to the party opposing the motion," Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986), that party may not rest upon mere allegations or denials in its pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). "Summary judgments, like directed verdicts, must be granted if there is no need for trial.... Mere existence of some alleged factual dispute will not defeat an otherwise properly supported motion for summary judgment." O'Hare v. Global Natural Resources, Inc., 898 F.2d 1015, 1017 (5th Cir.1990).

A

Nose first contends that she demonstrated a genuine issue of material fact as to whether she knowingly waived her right to a deportation hearing. ⁶ See Brief for Nose at 8-18. Generally, "even aliens who have entered the United States unlawfully are assured the protection[ ] of the fifth amendment due process clause," Haitian Refugee Center v. Smith, 676 F.2d 1023, 1036 (5th Cir.1982), including the right to a hearing before an immigration judge before being deported. ⁷ See The Japanese Immigrant Case, 189 U.S. 86, 101, 23 S.Ct. 611, 614-15, 47 L.Ed. 721 (1903) (holding that the due process of law forbids the State from "arbitrarily ... caus[ing] an alien who has entered the country, ... although alleged to be illegally here, to be taken into custody and deported without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States"). Although due process rights may be waived, see, e.g., Boddie v. Connecticut, 401 U.S. 371, 378-79, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (holding that "the hearing required by due process is subject to waiver"), such a waiver must be made knowingly and voluntarily. See Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977) (defining a waiver as " 'an intentional relinquishment or abandonment of a known right or privilege' " (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938))). In determining whether a waiver is knowing and voluntary, we must "indulge in every reasonable presumption against a waiver." Id.

Contrary to Nose's contention, the undisputed summary judgment proof conclusively established that she knowingly waived her right to a deportation hearing. In making this determination, we consider, inter alia, the following factors: (1) the party's background and experience; (2) the clarity of the written waiver agreement; and (3) whether the party was represented by or consulted with an attorney. See Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023 ("The determination of whether there has been an intelligent waiver of [a constitutional] right ... must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."); O'Hare, 898 F.2d at 1017 (holding that the relevant factors for determining whether a waiver under the Age Discrimination and Employment Act ("ADEA") was knowing and voluntary included whether the party consulted with an attorney and the clarity of the written waiver agreement). The undisputed summary judgment evidence shows: (1) that Nose was a highly educated person who, in addition to receiving her nursing degree, studied English for over two years at a major United States university, and subsequently passed a state English proficiency exam, see Record on Appeal, vol. 2, at 144-45; (2) that each of the six VWPP forms which Nose signed, clearly stated that: "I am waiving my rights to ... a hearing before an Immigration Judge to determine my admissibility or deportability," and "I have read and understood all the questions and statements on this form," see Record Excerpts for Nose tab. 5; ⁸ and (3) that Nose consulted with an attorney about the VWPP before she first entered the United States under the VWPP. See Record on Appeal, vol. 2, at 109-12. In opposing summary judgment, Nose only submitted her own deposition, in which she repeatedly stated that she neither read, nor understood, the VWPP forms which she signed. See, e.g., Record on Appeal, vol. 2, at 84-86, 107. Under these circumstances, the district court properly concluded that Nose did not demonstrate the existence of a genuine factual issue as to whether she knowingly waived her right to a deportation hearing. See, e.g., O'Hare, 898 F.2d at 1017-18 (affirming summary judgment on issue of knowing and voluntary waiver under the ADEA where appellant had experience and training to understand a relatively simple document and consulted with attorneys about the waiver, notwithstanding appellant's claim that he was under "stress" when he signed the waiver); Rogers v. General Elec. Co., 781 F.2d 452, 455-56 (5th Cir.1986) (affirming summary judgment on issue of knowing and voluntary waiver of Title VII...